Plaintiff Global Gaming Philippines, LLC ("GGAM") submits this memorandum of law, together with the Declaration of Kevin N. Ainsworth, executed November 15, 2022 ("Ainsworth Decl."), in support of GGAM's motion to exclude the testimony of attorney Catherine Rogers, whom Defendants Bloomberry Resorts and Hotels, Inc. ("BRHI") and Sureste Properties, Inc. ("SPI") (collectively "Defendants") have identified as an expert witness.
In their eighth bite at the apple, Defendants again seek to relitigate issues they lost in a Singapore arbitration. This Court has already rejected Defendants' efforts to relitigate their "FCPA Argument" regarding alleged corruption and concealment of evidence, which the arbitral Tribunal and Courts of Singapore also found meritless. Last year, when Defendants first sought to relitigate those issues here, the Court ruled they had been resolved in arbitration, stating: "documents from the Arbitral Tribunal's Final Award specifically addressed the issue of the Department of Justice's non-prosecution agreement with LVS and the Debtor Defendants' `speculative' assertions as to Weidner's and Chiu's actions and their consequences."1 The Court denied Defendants' motion to compel, citing the New York Convention's "emphasis on enforcing international arbitral awards and `considerations of reciprocity' coupled with the evidence that suggests that these issues were previously litigated in the arbitration in question."2 Defendants were not deterred, however, and later pushed for depositions about their "FCPA Argument." The Court granted GGAM a protective order for the same reasons it previously cited.3
Now, under the guise of expert-witness disclosure, Defendants again seek to relitigate their "FCPA Argument" through a 77-page legal brief by attorney Catherine Rogers, based on evidence "adduced in the arbitration itself."4 Rogers' proffered testimony is not relevant to this proceeding to enforce the foreign arbitral award, because she addresses matters that were decided in arbitration, and Defendants are not permitted to relitigate the arbitration.
Rogers' argument fails to state a cognizable "public policy" defense to enforcement of the arbitral awards under the New York Convention. She applies the wrong legal standard, and her analysis is entirely irrelevant to the test in this circuit. The correct test is whether "enforcement itself, `within the parameters of the arbitrator's interpretation of the facts,'. .. violates public policy." Commodities & Minerals Enter. v. CVG Ferrominera Orinoco, 49 F. 4th 802, 819 (2d Cir. 2022). Allegations of corruption in the underlying contract, even where provable, do not support a cognizable public policy defense. Id. Rogers, however, disagrees with the test stated in Commodities & Minerals and argues it "would render the public policy exception largely meaningless."5 Nevertheless, this Court is bound to follow the Second Circuit, and Rogers' speculation that GGAM had planned to engage in corrupt activities is irrelevant.
Rogers' testimony also is not admissible because her report is a simply a 77-page legal brief, reaching legal conclusions based on cherry-picked, out-of-context evidence from the arbitral record. Defendants' use of a lawyer to testify on these topics is a blatantly improper attempt to usurp the role of the court. Moreover, her opinions extend far beyond her area of expertise.
Rogers' opinions are unreliable for several reasons. First, as noted, her view of the public policy defense is contrary to controlling authority. Second, she fails to discuss the Tribunal's rulings that contradict her; the Tribunal considered the evidence cited by Rogers, including evidence she characterizes as "compelling evidence" of corruption, and held that Defendants (a) had failed to prove that GGAM had engaged in unethical conduct, and (b) were not justified in terminating the Management Services Agreement ("MSA"). The heart of Rogers' corruption argument concerns (and mischaracterizes) GGAM's planned strategies to bring junket operators and VIPs to Defendants' casino, Solaire; yet the Tribunal found that Defendants terminated the MSA before Solaire was ready to bring in such clients. The Tribunal also held that GGAM's alleged concealment of evidence regarding its planned strategies was irrelevant to Defendants' liability. Rogers does not discuss those findings. She also fails to consider the Singapore Courts' judgments rejecting the same arguments she now advances. When Defendants argued that the Tribunal did not consider their FCPA Argument (an argument that Rogers advances), Singapore's highest court described their position as "startling," adding: "[t]his, with respect, is a woeful mischaracterisation of the Tribunal's reasoning in the Remedies Award." That court further found that "the Tribunal expressly considered the FCPA Findings and other documents." Finally, Rogers does not mention this Court's prior rulings that Defendants cannot relitigate their FCPA Argument.
Far from expressing an independent expert opinion, Rogers' report is pure advocacy; she omits facts that undermine her conclusions, spins other facts out of context, and aims to smear GGAM. Indeed, she criticizes GGAM for its planned strategy to engage an allegedly corrupt junket operator (SunCity) but disregards the facts that (a) Defendants' CEO, Enrique K. Razon, Jr. ("Razon") testified in arbitration that it was Defendants--not GGAM--who brought in SunCity; and (b) Defendants continued doing business with SunCity until the eve of the arrest of its chairman in 2021. Those flaws and other inconsistencies in Rogers' report makes her opinions and testimony unreliable and inadmissible under Evidence Rules 402 and 702.
This motion to exclude testimony is non-dispositive6 and is aimed at streamlining GGAM's forthcoming motion to recognize and enforce arbitral awards, consistent with federal policy and the New York Convention.7 In the parties' meet and confer, Defendants made clear that they hope to delay the resolution of this motion. There is no just reason for such delay; the issues raised in this non-dispositive motion are ripe and will have to be decided. Preventing Defendants' improper efforts to relitigate the arbitration will alleviate the burden on Judge Schofield when deciding GGAM's enforcement motion.